This article seeks to set in context and examine chapter one of the Civil Procedure Rules and show that, by setting out, expressly, an "overriding objective" in chapter one, the Civil Procedure Rules commits itself to a particular vision of civil procedure. This vision may, at times, lack internal coherence but, at the very least, moves civil procedure in England from a formal concept based on the right of access to courts and party control, to a substantive three dimensional concept of procedural justice. By transferring more power to the courts, the individual concerns traditionally associated with the right of access to the courts give way to a more collective approach. This holds that, where there are finite resources and where, to be effective, justice must be seen to be swift, the right of one court user will, at times, need to yield to the rights of others.

Section 1 of the South African constitution prescribes the rule of law as one of the seminal values on which the constitution is founded. The concept of the rule of law is a fundamental value that underlies "an open and democratic society based on dignity, equality and freedom", and must be promoted when interpreting the provisions of the bill of rights. It is important to understand the history and significance of this term in order to evaluate its significance in the new constitutional dispensation in South Africa.

In any modern society, legislation is the most important source of new law. One has to add to this the fact that contracts can be regarded as sources of ad hoc law that are created by the parties to deal authoritatively with certain matters inter partes. The same can probably be said of wills and other legal instruments. Then it becomes clear that legal instruments of all kinds are indispensable sources, not only for creating, but also for ascertaining modern law and legal relations. And these processes of creating and ascertaining legal rules and relations, of drafting and interpreting legal instruments, constitute instances of legal discourse in that various actors or interlocutors interact with each other and with the text of the legal instrument in an attempt to make sense of the text and the underlying law and legal relations. This article explores the complexity of the discourse that is inherent in any authoritative legal instrument, such as the legislative measures, contracts, wills, etc, in which binding legal rules, rights and duties are created and/or authoritatively regulated. For ease of reference, I will refer to this as "legal discourse".

Robert Alexy's doctoral thesis was published in 1985 under the title of Theorie der Grundrechte. The Dutch constitutionalist Burkens (Algemene Leerstukken van Grondrechten naar Nederlands Constitutioneel Recht (1989) 27-28) described Alexy's theory as "monumental". The fact then that this work has at long last been translated into English is to be welcomed, as its appeal is no longer only limited to a German-reading audience. (Alexy Begriff und Geltung des Rechts 1994, has also been translated as: Alexy The Argument from Injustice: a Reply to Legal Positivism 2002.) The translation, in itself a monumental endeavour, was attempted and completed with distinction by Julian Rivers, who lectures law at the University of Bristol. Alexy also used the opportunity of an English translation of his work to update numerous references and to include a postscript, in order to outline a number of his ideas with greater clarity and also to answer his critics, notably in the form of Habermas (Between Facts and Norms 1996).